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The Honolulu Advertiser
Posted on: Thursday, July 21, 2005

High court nominee an intriguing choice


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At first blush, President Bush's nomination of appellate Judge John Roberts as the next Supreme Court justice appears to be a reasonable choice.

Roberts, not unexpectedly, is a strong conservative. Bush said he can be expected to interpret the Constitution, rather than write law from the bench.

But initial reports suggest that the relatively youthful Roberts (he is 50) is a respected legal scholar and thoughtful jurist.

He is far from the flame-throwing conservative that some feared Bush would choose, almost certainly setting up an ugly battle with Democrats in the Senate.

Not that his confirmation is a sure thing. Nor should it be.

Senate Democrats promised to take a hard look at Roberts, his opinions and his reputation. This nomination deserves the strictest scrutiny.

But ideology aside, Senate Minority Leader Harry Reid noted that Roberts has all the intellectual and legal credentials needed to be a justice.

Obviously, one battle point will be abortion. On this, the record is mixed. Roberts was a co-author of a Justice Department legal brief in 1990 that argued the 1973 Roe v. Wade decision "was wrongly decided."

But since then, he has said that as a judge he considers Roe v. Wade "settled law of the land."

Hawai'i should take a particular interest in Roberts' nomination. One of the key questions Islanders have had about the next Supreme Court justice was what that person's view would be on the constitutionality of programs and special rights for Hawaiians.

As it turns out, Roberts worked with Hawaiians and the state of Hawai'i in the famous Rice v. Cayetano case involving the Hawaiians-only voting requirement for the Office of Hawaiian Affairs.

In a brief, Roberts said the Hawaiians-only provision was no different from other attempts by Congress and the states to honor special obligations to native peoples.

As with abortion, what Roberts argued and said about Hawaiian rights in the past is no sure indicator of how he might rule from the bench.

But since Roberts has a relatively short record as a jurist, it is particularly important that the Senate look deeply into his other writings and legal work. If Roberts stands up well to such close inspection, he is owed an up-or-down vote on his nomination.